ABOLITION OF SPECIAL JURIES AND UPPLEMENTAL PROVISIONS (Hansard, 7 April 1971)

§ Mr. Carlisle
I beg to move Amendment No. 31, in page 28, line 35, leave out subsections (2) and (3) and insert: (2) No judgment after verdict upon any indictment, or after verdict in any other trial by jury in any court, shall be stayed or reversed by reason—

(a) that the provision of this Act about the summoning or impanelling of jurors, or the selection of jurors by ballot, have not been complied with, or

(b) that a juror was not included in the relevant jurors' book or jury list, or

(c) that any juror was misnamed or misdescribed, or

(d) that any juror was unfit to serve or unsuitable in any way.
(3) Subsection (2)(a) above shall not apply to any irregularity if objection is taken at, or 567 as soon as practicable after, the time it occurs, and the irregularity is not corrected. (4) Nothing in subsection (2) above shall apply to any objection to a verdict on the ground of personation.

Mr. Deputy Speaker
It might be convenient to the House to take, with this Amendment, Government Amendment No. 65.

§ Mr. Carlisle
That would be convenient, Mr. Deputy Speaker.
Amendment No. 31 is to a large degree drafting. It is to meet a point raised in Committee by my hon. Friend the Member for Orpington (Mr. Stanbrook) and to clarify the law. This is a useful drafting Amendment. We have restated the law as it now stands rather than legislated by reference to the 1826 Act, much of which is obsolete. The Amendment seeks to bring parts of that Act up-to-date. Amendment No. 65 merely repeals the 1826 Act.

§ Mr. Edward Lyons
There is one point on which I seek enlightenment. In Clause 40(2)(h) we are told that the right to appeal is withdrawn after a verdict when any juror is unfit to serve or unsuitable m any way". I appreciate that those words were in the Bill at the time of the Committee stage, but nobody then asked what was meant by the phrase "unsuitable in any way". I am a little anxious about this matter because I am reminded of those cases where jurors, as has come to light later, have known the accused and have known things to his detriment.
The case of Thomas involved a case in Wales which was conducted in English and two jurors were said afterwards to speak only Welsh and not to have understood the proceedings. The Court of Appeal on that occasion refused to admit the evidence on appeal. One feels that it would not have refused to admit such evidence if most of the jurors had not been able to understand the proceedings which, to them, were conducted in a foreign language. There are cases on record where an appeal has been allowed because it has transpired subsequently that a jury was so constituted that it would have been unable, or unlikely to have been able, to do justice to the defendant. Such was the case of Hancocks.
568 I should hate to think that by this Clause, which contracts significantly the right of appeal in the classes of case to which it applies, the word "unsuitable" could be extended to include matters under the general heading of the results of embracery. Embracery is an ancient crime, and some four years ago in a case called Eldridge, at Leeds Assizes, a prosecution took place for just such a crime. Since few people are likely to know what the term embracery means, it involves an attempt by bribe or any corrupt means to influence or instruct jurors.
Supposing, for example, that either before or during a trial somebody corrupts a juror and such a matter is not known until after the trial comes to a conclusion, why should there not be a ground of appeal in respect of that misconduct? I appreciate that the person guilty of the corruption, the embracer, can be prosecuted, but what about the person who may have been convicted? Does the word "unsuitable" include misconduct by a juror, or does it simply mean that the man just does not understand English, or is deaf or blind? If it only means that, one can take a more cheerful view, but "unsuitable" is not a legal word at all but a layman's word and can mean almost anything. Some court in the future might construe it in an unfortunately wide way.
Why should the right of appeal be withdrawn from a man convicted if subsequently it turns out, for example, that nearly all the jurors were deaf, or could not speak English, or suffered from some combination of such factors? I think that this otherwise sensible Clause may be marred by the use of the words "unsuitable in any way." Perhaps we can be given a little enlightenment.

§ Mr. Carlisle
I am afraid that I cannot help the lion. Gentleman very much and that in the end I should probably have to undertake to write to him if there is anything in what he says. I should have thought that a question of bias in the jury, for instance, went far wider than the word "unsuitable", and would be a ground on which the Court of Appeal could always intervene.
The word "unsuitable" must be taken in its normal meaning, and when following the words "unfit to serve" must mean that the juror was unsuitable by 569 some defect which was not then apparent. If the unsuitability went as far as bias against an accused, that would be something at which the Court of Appeal would look. I have no note which takes the matter further, but I will look at the point again.

§ Sir Elwyn Jones
We seem to have missed this point in the Committee. I do not like the word "unsuitable" at all. If there were any reason to think that its use might involve a corrupt juror being described as unsuitable and an appeal being rejected out of hand it would be a most deplorable situation.
I suppose that it is a bit late to look at this question now, when we are about to move to Third Reading. We are in the difficulty that whereas the rest of the Clause seems quite sensible we have this single unhappy word. I do not know whether at this point of time there is anything we can do about it. I reproach myself a little for not having drawn attention to it in Committee.
The word "unsuitable" covers a multitude of possibilities: it can be as broad as one likes or as narrow as one likes. While instructions are being taken under the Gallery, perhaps I can elaborate the matter a little further in the hope of getting more assurance.
Is the unsuitability in respect of educational capacity or conduct in the conduct of a trial, or what does "unsuitable" mean? I know of no precedent for the use of such a word in any other legislation. There might be a belated discovery that a juror was unfit to serve because during the luncheeon adjournment he had taken an excess of refreshment, but as we now in any case have a rule for majority verdicts I suppose that there is a little place for latitude in regard to an individual juror.
The difficulty about the use of the word "unsuitable" lies not only in the anxiety one feels about the word itself, but in the fact that as the Clause stands one can suppose that more than one juror was in the condition I have described—there might be several jurors like that—and it is not clear whether a juror "unsuitable" so called would provide an opportunity for an appeal. I hope that I have taken sufficient time during my observations on this matter to enable the right hon. and learned Gentleman either 570 to devise a formula to get rid of "unsuitable" at this stage or to give some assurance as to what it is thought to mean.

§ The Attorney-General
One of the great advantages of debating with a very old Parliamentarian—if the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) will forgive me—is that opportunity is sometimes able to be taken to form constructions and to consult about a matter which was clearly very rightly raised by the hon. Member for Bradford, East (Mr. Edward Lyons), and which all of us have overlooked until now.
I agree with the hon. Member for Bradford, East and with the right hon. and learned Gentleman. The words "… or unsuitable in any way" have a very respectable origin, going back, perhaps, to the 1826 Act and included in Morris. Nevertheless, I share with the hon. Gentleman and the right hon. and learned Gentleman their distaste or surprise to see them there.
If acceptable to you, Mr. Deputy Speaker, I will propose that the Amendment should be amended so that subsection "(d)" should read that any juror was unfit to serve and that we should omit from the Amendment the words …or unsuitable in any way. The matter can be looked at again, perhaps, in other legislation. I submit to you, Mr. Deputy Speaker, that that would meet the points raised by the hon. Gentleman and the right hon. and learned Gentleman. Therefore, if you agree, I invite you, by a further Amendment, to have the words … or unsuitable in any way omitted from the Amendment moved by my hon. Friend the Under-Secretary.

§ Mr. Deputy Speaker (Miss Harvie Anderson)
It would best suit the House if we were to take the Amendment as it now stands. I would certainly accept a manuscript Amendment from the Attorney-General almost immediately, which would amend this Amendment.

§ The Attorney-General
I am grateful to you, Mr. Deputy Speaker, although I am not sure now that that is acceptable to the hon. Gentleman and to the right 571 hon. and learned Gentleman, as I see that they have been in consultation. Perhaps they do not agree with the proposal.

§ Sir Elwyn Jones
It is certainly an improvement. My hon. Friend is still not very happy about the words that any juror was unfit to serve … What troubles him is that a corrupted juror might by virtue of that fact be deemed to be a juror who was unfit to serve. I should think that those words bore a construction far more limited than that and that "unfit to serve" meant unfit by reason of some mental or physical disability. I should have thought that the words would clearly imply that. I hope that that observation may prove satisfactory. But if further guidance from those who advise us on these matters is required upon that matter also, I am very happy to have a little time for dealing with the elaboration of this difficulty. But if the right hon. and learned Gentleman is happy about it, it does not trouble me as much as the words … or unsuitable in any way. It is suggested by my hon. and learned Friend that the word "incapable" might be substituted, but I am not sure that that would meet the requirements of the case.

§ The Attorney-General
The right hon. and learned Gentleman will know that there is a reference in Clause 38 to "unfit for service". That means unfit for service by reason of drink or drugs. So, quite clearly, there are reasons for unfitness for service. The words which I find so difficult and which I have noted to draw the attention of the House are, "is unsuitable in any way".

§ Sir Elwyn Jones
I see my hon. Friend the Member for Bradford, East (Mr. Edward Lyons) looking reasonably content. What is proposed by the Attorney-General eliminates the major difficulty, and I would expect the court to construe "unfit to serve" in the way I have submitted to the House. I am grateful to the right hon. and learned Gentleman for acceeding to this, and I compliment my hon. Friend on his quickness in spotting what had hitherto passed undetected through another place and through Committee.